ORDER PO-4322

Appeal PA20-00701

Ontario Lottery and Gaming Corporation (OLG)

November 28, 2022

Summary: This order deals with a request for agreements between the Ontario Lottery and Gaming Corporation (the OLG) and a third party (the appellant). Following third party notification, the OLG decided to release the agreements in full. The appellant appealed the OLG’s decision, claiming that the third party information exemption at section 17(1) of the Act applies. In this order, the adjudicator dismisses the appeal and upholds the OLG’s decision finding that the records are not exempt and ordering them disclosed to the requester.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, section 17(1) .

Orders Considered: Orders MO-1781, MO-2249-I, PO-2774 and PO-4000.

OVERVIEW:

[1] By way of background, the appellant is a landlord involved in the hospitality sector in Niagara. In this appeal, the Ontario Lottery and Gaming Corporation (the OLG) entered into an agreement to lease the appellant’s property.

[2] The OLG received a request under the Freedom of Information and Protection of Privacy Act  (the Act ) for access to records relating to lease arrangements mentioned in the OLG’s January 22, 2010 news release and any amendments thereof related to the Niagara Bundle. [1] Following third party notification, OLG issued a decision granting full access to the responsive records.

[3] A third party (now the appellant) appealed OLG’s decision to the Office of the Information and Privacy Commissioner (the IPC).

[4] During mediation, the requester confirmed an interest in pursuing access to the responsive records and raised the possible application of the public interest override in section 23  of the Act . OLG confirmed its decision to grant full access to the responsive records. The appellant advised that it believes the responsive records exceed the scope of the request pursuant to section 24 of the Act and that they should be withheld pursuant to section 17(1)  of the Act . At the appellant’s request, OLG sent it a link of the news release dated January 22, 2010, referred to in the request.

[5] No further mediation was possible and this appeal was transferred to the adjudication stage of the appeals process, in which an adjudicator may conduct an inquiry.

[6] As the adjudicator assigned to this appeal, I decided to conduct an inquiry into this matter. I began by inviting the appellant to make representations in response to a Notice of Inquiry, which outlined the facts and issues under appeal. I received representations from the appellant, which were shared with the OLG and the requester, asking them to provide representations in response to the facts and issues in this appeal and to the appellant’s representations. I received representations from the OLG and the requester, redacted copies of which were shared with the appellant. I then sought and received reply representations from the appellant, which were shared with the OLG and the requester, both of whom chose to not submit sur-reply representations. Representations were exchanged between the appellant, the OLG and the requester in accordance with section 7 of the IPC’s Code of Procedure and Practice Direction 7.

[7] In this order, I dismiss the appeal. I uphold the OLG’s decision that the records are not exempt under section 17(1) of the Act and I order them disclosed to the requester.

RECORDS:

[8] The following two (2) records are at issue in this appeal:

(a) Amending Agreement dated December 22, 2009 (the amending agreement), including two schedules (the schedules); and

(b) Termination and Surrender Agreement dated June 11, 2019 (the terminating agreement)

(collectively, the records).

ISSUES:

1. What is the scope of the request? What records are responsive to the request?
2. Does the mandatory exemption at section 17(1) apply to the records?
3. Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the section 17(1) exemption?

DISCUSSION:

Issue A: What is the scope of the request? What records are responsive to the request?

[9] Section 24  of the Act  imposes certain obligations on requesters and institutions when submitting and responding to requests for access to records. This section states, in part:

(1) A person seeking access to a record shall,

(a) make a request in writing to the institution that the person believes has custody or control of the record;

(b) provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record;

…

(2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

[10] Institutions should adopt a liberal interpretation of a request, in order to best serve the purpose and spirit of the Act . Generally, ambiguity in the request should be resolved in the requester’s favour. [2]

[11] To be considered responsive to the request, records must “reasonably relate” to the request. [3]

Representations of the parties

[12] As noted above, OLG sought clarification of the request from the original requester. The original request was for:

• The lease arrangements entered into by OLG that are referred to in the OLG news release dated June 11, 2019.
• Any amending agreements that, subsequent to June 11, 2019, amended either of the lease agreements referred to in OLG news release dated June 11, 2019. [Emphasis added by me]

[13] The requester subsequently corrected the date of the news release to January 22, 2010, not June 11, 2019. OLG corrected the request, which was confirmed by the original requester, as follows:

• Lease arrangements mentioned in OLG's January 22, 2010 [news] release and any amendments thereof related to Niagara Bundle. [Emphasis added by me]

[14] The appellant submits that the only document within the scope of the request is the amending agreement dated December 22, 2009 (not the terminating agreement dated June 11, 2019) because it is the only document noted in the 2010 news release. [4] It submits that:

The 2019 [terminating agreement] document is not mentioned in the 2010 [news] release. The change in the request that was made by OLG after consultation with the requester clearly narrowed the request to the documents referred to in the 2010 [news] release. The 2019 [terminating agreement] document is not an amendment to the document noted in the 2010 [news] release – it is a termination and surrender agreement by OLG. It does not amend any pre-existing lease, rather, OLG terminated and surrendered its interests.

[15] Because OLG would be aware of the context when it redrafted the request, the appellant submits that the scope of the request is clear – for the document referenced in the 2010 news release and any amendments thereof. It further submits that the only document that is within scope is the document noted in the 2010 news release, namely, the amending agreement, which was to extend the initial agreement until 2025.

[16] The appellant explains that it was not involved in communications between the OLG and the requester, and as such, it is not in a position to comment on such communications.

[17] It is OLG’s position that the terminating agreement is responsive to the request. [5] OLG explains that there was no “change in the request”; rather when OLG could not find a news release dated June 11, 2019, it contacted the requester, who advised that the correct date of the new release was January 22, 2010 and also provided a link to that news release. OLG submits that the request was not narrowed by the requester – it was corrected. It also submits that the correction did not change the scope of the request; it provided OLG with the information it required to locate responsive records.

[18] OLG also submits that since the terminating agreement terminated the lease referred to in the amending agreement, it modified the meaning of the amending agreement. In support of this, it refers to section 2 of the terminating agreement.

[19] The requester’s representations do not directly address this issue.

Analysis and findings

[20] As explained below, I find that the records identified by the OLG as being responsive are reasonably related to the request. I further accept the OLG’s position that the request was corrected by the requester.

[21] I have reviewed the correspondence between the OLG and the requester, clarifying the request. The evidence before me shows that the scope of the request was corrected from referring to an OLG news release dated June 11, 2019, which, according to OLG, does not exist, to referring to an OLG news release from January 22, 2010.

[22] It is my view that the scope of the request is for two things: (1) lease arrangements mentioned in the January 22, 2010 news release; and (2) any amendments to the lease arrangements. Moreover, the scope of the request would include documents mentioned in the news release and those not mentioned in the news release, but that amended the documents mentioned in the news release.

[23] I agree with OLG that the request was corrected by the requester to indicate the correct date of the news release, and that this permitted OLG to locate the correct news release and subsequently, to locate responsive records. I also agree with OLG that the terminating agreement can be characterized as amending the amending agreement, and therefore, within the scope of the request. As noted by OLG, the terminating agreement would have amended the end date of the amending agreement between the parties. While the appellant is correct that the terminating agreement is not mentioned in the 2010 news release, it is my view that a record does not need to be mentioned in the news release to be characterized as responsive to the request.

[24] Accordingly, I find that the scope of the request, as corrected by the requester, includes both the amending agreement and the terminating agreement. I will now turn to whether the mandatory exemption at section 17(1) applies to the records.

Issue B: Does the mandatory exemption at section 17(1) apply to the records? [6]

[25] Section 17(1)  of the Act  states:

A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to,

(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;

(b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied;

(c) result in undue loss or gain to any person, group, committee or financial institution or agency; or

(d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute.

[26] Section 17(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to government institutions. [7] Although one of the central purposes of the Act  is to shed light on the operations of government, section 17(1)  serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace. [8]

[27] For section 17(1) to apply, the institution and/or the third party must satisfy each part of the following three-part test:

1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and
2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and
3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in paragraph (a), (b), (c) and/or (d) of section 17(1) will occur.

Part 1: type of information

[28] Past IPC orders have defined the types of information listed in section 17(1)  of the Act  for part one of the test. The two types of information raised in this appeal are:

Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services. This term can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises. [9] The fact that a record might have monetary value or potential monetary value does not necessarily mean that the record itself contains commercial information. [10]

Financial information refers to information relating to money and its use or distribution and must contain or refer to specific data. Examples of this type of information include cost accounting methods, pricing practices, profit and loss data, overhead and operating costs. [11]

Representations of the parties

[29] The appellant submits that the records, by their nature, contain information that is commercial and financial. It submits that the records contain pricing and commercial terms, including renewals terms, which reflect its essential business policies, approaches and practices. More specifically, it also submits that article 6 of the amending agreement, which specifically sets out how the appellant intends to make use of its premises and adjacent properties falls clearly in the definition of commercial information.

[30] In response, the requester submits that it is not clear that references in the amending agreements to building repairs or the appellant’s plans for its property are commercial information, financial information or any other type of information that would engage section 17(1)  of the Act .

Analysis and findings

[31] Having reviewed the records, I find that the records contain commercial and financial information. In particular, the records contain commercial information as they concern the leasing services provided by the appellant and purchased by OLG. They also contain pricing related information about these services, which constitutes financial information. More particularly, in light of my findings below, it is my view that the two schedules to the amending agreement (the schedules) also contain commercial and financial information, given that they detail repairs and the costs for those repairs required for the appellant’s property, and the appellant’s plans or potential plans for its property. I disagree with the requester’s position that information about repairs to property and plans or potential plans for its property does not qualify as any of the types of information listed in section 17(1)  of the Act .

[32] Therefore, the records contain commercial and financial information. Accordingly, I find that part 1 of the test under section 17(1) has been met for both records.

Part 2: supplied in confidence

[33] The requirement that the information was “supplied” to the institution reflects the purpose in section 17(1) of protecting the informational assets of third parties. [12]

[34] Information may qualify as “supplied” if it was directly supplied to an institution by a third party, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party. [13]

[35] The contents of a contract involving an institution and a third party will not normally qualify as having been “supplied” for the purpose of section 17(1). The provisions of a contract, in general, have been treated as mutually generated, rather than “supplied” by the third party, even where the contract is preceded by little or no negotiation or where the final agreement reflects information that originated from a single party. [14]

[36] There are two exceptions to this general rule, which are described as the “inferred disclosure” and “immutability” exceptions. The “inferred disclosure” exception applies where disclosure of the information in a contract would permit accurate inferences to be made with respect to underlying non-negotiated confidential information supplied by the third party to the institution. [15] The “immutability” exception arises where the contract contains information supplied by the third party, but the information is not susceptible to negotiation. Examples are financial statements, underlying fixed costs and product samples or designs. [16]

[37] In order to satisfy the “in confidence” component of part two, the parties resisting disclosure must establish that the supplier of the information had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided. This expectation must have an objective basis. [17]

[38] In determining whether an expectation of confidentiality is based on reasonable and objective grounds, all the circumstances of the case are considered, including whether the information was:

• communicated to the institution on the basis that it was confidential and that it was to be kept confidential
• treated consistently by the third party in a manner that indicates a concern for confidentiality
• not otherwise disclosed or available from sources to which the public has access
• prepared for a purpose that would not entail disclosure. [18]

Representations of the parties

[39] The appellant submits that, while some portions of the records may have been mutually generated, it supplied significant parts of the records to OLG, which were not mutually generated or negotiated, on a confidential basis.

[40] It refers to the immutable exception to the general rule that information in a contract is negotiated and not supplied, for the non-negotiated confidential information supplied by the appellant as a third party to OLG. The appellant explains that its approach to negotiations and assessment of risks versus reward, which are apart of its broader business approach and practices, were not the subject to any negotiations with OLG and that these business practices transcend the records. It also explains that its plans or potential plans for its property contained in the records, for particularly, in article 6 of the amending agreement and in the schedules, are confidential and were not subject to any OLG agreement or negotiations. Accordingly, the appellant submits that this information is immutable.

[41] It also refers to the inferred disclosure exception to the general rule. The appellant explains that information about building repairs contained in the records would fall into the inferred disclosure category and is confidential, as it relates to the condition of the appellant’s property. It also explains that article 6 of the amending agreement and information in the schedules includes confidential information supplied by the appellant to OLG for its information because it relates to the appellant’s plans for its property, including property that is not part of the amending agreement. With respect to its plans for its property, the appellant submits that they are both immutable in its nature and would result in inferred disclosure.

[42] The appellant also takes the position that OLG has consistently treated documents similar to the records as confidential, indicating that such documents were made available to proponents through a password protected and secure web portal only after they had signed non-disclosure agreements, assuring OLG that all persons would maintain these documents as confidential. It further submits that OLG has consistently, in the past, declined to make these and similar documents available.

[43] In response to the appellant’s references to the immutable and inferred disclosure exceptions, the requester submits that, in order for the inferred disclosure exception to apply, there must have been: (1) information that was supplied; (2) but which does appear on the face of a contract; (3) the disclosure of which would permit an accurate inference of the underlying non-negotiated information that was supplied.

[44] While the appellant says that there are references in the amending agreements to documents related to building repairs, the requester responds that:

• If there are merely references, then it is not clear that any underlying information was ever supplied to OLG – if not, the exception is unavailable.
• It is also not clear that information about building repairs is confidential at all – the appellant relies on a bare assertion without any further details.

[45] In response to the appellant’s representations about its plans for its property in the amending agreement, the requester responds as follows:

The appellant argues that both the immutability and the inferred disclosure exceptions apply to this information. This is simply not possible, since information cannot both appear (required for immutability) and not appear (required for inferred disclosure) on a contract at the same time. In this case, the information does seem to appear in the contract, but that is not sufficient for the exception to apply. Sophisticated parties include many different types of information in contracts for many reasons, usually because they want to outline their rights and obligations. Merely stating that the information consists of “plans” does not mean that it is immutable. Indeed, plans change all the time based on events and circumstances. This argument cannot succeed.

[46] In reply, the appellant submits that its plans and how it intends to make use of its property was not “negotiated” between it and the OLG. It explains that it developed these plans itself, and that any information about those plans were supplied to notify the OLG of its plans on a confidential basis. It also submits that article 6 of the amending agreement, which refers to a sketch for one proposed project in schedule B of the amending agreement, specifically sets out the appellant’s plans with respect to the continued development of its premises and adjacent properties. It explains that this information was not part of the landlord services being provided to the OLG. It provides me with confidential representations to this effect, which I have considered in making this order, but which I do not outline here.

Analysis and findings

[47] Having carefully reviewed the records, as well as the parties’ representations, I find that the records, excluding article 6.1(a)-(c) of the amending agreement (article 6.1(a)-(c) and the two schedules to the amending agreement (the schedules), were not supplied by the appellant to OLG. Except for article 6.1(a)-(c) and the schedules, I agree with the OLG that the amending agreement and the terminating agreement contain mutually generated, agreed-upon, essential terms of a contract that are the product of a negotiation process.

[48] Other than article 6.1(a)-(c) and the schedules, it is my view that the constituent terms of the amending agreement and the terminating agreement do not fall into the “inferred disclosure” or “immutability” exceptions. I agree with the requester that the records, other than article 6.1(a)-(c) and the schedules, have been mutually generated, rather than supplied by the appellant, and that disclosure of the records would not permit accurate inferences to be made with respect to underlying non-negotiated confidential information supplied by the appellant to the OLG, nor would this disclosure reveal information that is not susceptible to negotiation.

[49] Therefore, I find that, other than article 6.1(a)-(c) and the schedules, the records were not supplied to the OLG by the appellant. As part 2 of the test under section 17(1) has not been met for the records, excluding article 6.1(a)-(c) and the schedules, I will order them disclosed to the requester.

[50] With respect to article 6.1(a)-(c) and the schedules, I find that they contain information that was supplied by the appellant to the OLG. Despite the general rule that information in a contract is negotiated and not supplied, I agree with the appellant that the immutability exception applies to article 6.1(a)-(c) and the schedules, as they contain information that is not susceptible to change in the negotiation process. It is my view that article 6.1(a)-(c) and the schedules detail repairs required for the appellant’s property and the appellant’s plans or potential plans for its property, which were not subject to any OLG agreement or negotiations. In light of this, I do not need to make a finding on whether the information remaining at issue also falls within the inferred disclosure exception. However, I am persuaded by the appellant’s representations that the information about the repairs required for the appellant’s property could infer information about the general state of repair of the appellant’s property.

[51] I also find that article 6.1(a)-(c) and the schedules were supplied in confidence by the appellant to the OLG. I accept the appellant’s evidence that it supplied this information to OLG with a reasonable expectation of confidentiality. I accept that the appellant relied on the fact that the OLG has maintained the confidentiality of this information, in addition to other information, in its relations with the appellant and other parties. I note that OLG has not submitted any evidence to dispute this, despite having been given the opportunity to do so.

[52] Therefore, I find that article 6.1(a)-(c) and the schedules were supplied in confidence by the appellant to the OLG. As part 2 of the test for exemption under section 17(1) has been met for article 6.1(a)-(c) and the schedules, I will continue my analysis of whether disclosure of article 6.1(a)-(c) and the schedules (the information remaining at issue) could result in the harm contemplated by section 17(1)(c) under part 3 of the test.

Part 3: harms

[53] Parties resisting disclosure must establish a risk of harm from disclosure of the record that is well beyond the merely possible or speculative, but need not prove that disclosure will in fact result in such harm. [19]

[54] Parties should provide detailed evidence to demonstrate the harm. How much and what kind of evidence is needed will depend on the type of issue and seriousness of the consequences. [20] The failure of a party resisting disclosure to provide detailed evidence will not necessarily defeat the claim for exemption where harm can be inferred from the records themselves and/or the surrounding circumstances. However, parties should not assume that the harms under section 17(1) are self-evident or can be proven simply by repeating the description of harms in the Act . [21]

[55] In applying section 17(1) to government contracts, the need for public accountability in the expenditure of public funds is an important reason behind the need for detailed evidence to support the harms outlined in section 17(1). [22]

Representations of the parties [23]

[56] The appellant submits that the records contain confidential information that was and remains valuable to it and, if released, could depreciate its commercial and financial interests, especially in a highly competitive market such as Niagara region.

[57] It explains that it operates in a highly competitive environment, both with respect to competitors located in Niagara region and in the United States, where information for larger-scale customers is valuable and kept confidential. It also explains that OLG Modernization process has created competition as between casinos located in the Niagara region and those located in other areas in Ontario. It further explains that OLG’s operational model is for the operators of the casinos to compete with each other – thus since 2012, the level of competition and the nature of that competition for third parties who supply goods and services has increased.

Analysis and findings

[58] On my review of the representations, the information remaining at issue, namely, article 6.1(a)-(c) and the schedules, and the surrounding circumstances, I am not persuaded that disclosing the information remaining at issue could reasonably be expected to result in any of the harms outlined in sections 17(1)  of the Act .

[59] As noted above, the appellant, as the party resisting disclosure in this appeal, must provide sufficient evidence to establish the potential for harm.

[60] The appellant submits representations on the nature of its industry, describing its highly competitive nature and explains that releasing the information remaining at issue could result in the harms outlined in section 17(1) because its competitors would know its plans or potential plans for its property, and about the state of its property and its need for repairs.

[61] My decision on whether the section 17(1) exemption applies to specific information in an agreement between a private corporation and an institution must be approached carefully, applying the tests developed by the IPC while appreciating the commercial realties of the negotiation process and the nature of the industry in which the agreement occurs. [24] It is also important that each appeal must be considered independently, with a view to the evidence presented and the impact of other factors, such as the positions taken by the parties, the passage of time and the nature of the information remaining at issue. [25]

[62] While not determinative of the harms test under section 17(1), I cannot ignore the fact that the amending agreement is dated December 2009 and the schedules to the amending agreement are dated November and December 22, 2009, respectively, which is 13 years ago.

[63] Previous IPC orders have found that the age of the records and the passage of time are relevant factors in determining whether disclosure of records could reasonably be expected to result in the types of harms described in section 17(1)  of the Act , where the risk of competitive harm with disclosure of a record may lessen with the passage of time. [26] It is my view that the appellant has not provided sufficient evidence to establish that disclosure of information about repairs and plans or potential plans for the appellant’s property from 2009 could reasonably be expected to result in any of the harms described in section 17(1); it has simply provided general representations, without explaining how disclosure of the information from 2009 could result in such harm.

[64] Therefore, I find that there is a lack of sufficient evidence to establish that disclosure of the records could result in the harms contemplated by section 17(1) of the Act and that part 3 of the section 17(1) test has not been met. Accordingly, the section 17(1) exemption does not apply to article 6.1(a)-(c) and the schedules, and I will order this information disclosed to the requester.

Conclusion on the section 17(1) exemption

[65] In summary, I find that the section 17(1) exemption does not apply to the records. In light of this, I will order the OLG to disclose the records in their entirety to the requester, namely, the amending agreement (including the schedules) and the terminating agreement. Given my findings that the section 17(1) exemption does not apply to the records, I do not need to consider whether there is a compelling public interest in disclosure of the records that clearly outweighs the purpose of the section 17(1) exemption.

ORDER:

[66] I uphold the decision of the OLG and order it to disclose the records to the requester.

Original signed by:		November 28, 2022
Valerie Silva
Adjudicator